T-Mobile's legal team protests Town's approach to St. Pat's cell-tower petition
Published on June 4th, 2008
STONEHAM, MA - Attorneys representing T-Mobile lodged multiple objections last week to the Zoning Board of Appeals' (ZBA) planned scrutiny of a St. Patrick's Cemetery cell-tower proposal.
During last Thursday's ZBA meeting, Lobel, Glovsky, & Tye attorney Brian Grossman insisted that radio frequency engineer David Mackson, of Medfield's Broadcast Signal Lab, could not be hired as the town's consultant due to a conflict of interest.
The lawyer would later object to two other consultants, a drive-test expert and a planner, because those reviews were either too expensive or unnecessary in his view.
In particular, Grossman contended that Mackson was involved in pending litigation against T-Mobile, and as such couldn't be impartial when reviewing the application for an 80-foot tall cell-tower at St. Patrick's Cemetery.
Omnipoint Communications, which has entered into a lease agreement with the Archdiocese of Boston, is seeking variances to install the tower in the middle of the cemetery, at a section that's located approximately 48-feet from Broadway.
Omnipoint, a subsidiary of T-Mobile, needs a variance from the Zoning Board because the use is not allowed in the zoning district, the tower exceeds maximum height restrictions, and it lacks proper side setback requirements.
Last Thursday night, Grossman claimed that because Omnipoint Communications would foot the bill for the peer review, the telecommunications company had the right under state law to object to any consultants.
"Omnipoint is objecting to Mr. Mackson based on a conflict-of-interest," said Grossman. "That would adversely impact his ability to be impartial, even in regard to this case, although it's not in litigation."
In order to make the objections formal, they must be issued in writing to the Board of Selectmen, who would then make a determination as to whether T-Mobile's claims are legitimate.
The procedural matter does throw a wrench in the ZBA process, as the board has to issue its decision on the variances by July 9.
Town Counsel Bill Solomon tried to convince the petitioners that an extension to that deadline would be fair to all involved parties, but Grossman refused to commit to that request.
Solomon recognized that state law allowed petitioners to object to the hiring of consultants when they were unqualified or had a conflict of interest.
However, according to the town attorney, Grossman's protests were without merit, as case law had recognized the right of consultants to participate in multiple deliberations, as long as their involvement wasn't specifically tied to pending litigation.
"The fact that he is involved in another case doesn't even come close to the argument that there's a conflict of interest," Solomon responded. "Under that theory, what would happen is that there would be no consultants left [to hire]. In the wireless field, T-Mobile, as well as other carriers, have many suits."
Just trust us
According to T-Mobile, the cell-phone provider has a significant gap in coverage that extends right through the center of Stoneham, including along Elm Street to the Wakefield line.
The wireless phone service company has further contended that although Stoneham's zoning bylaws prohibit the placement of a cell-tower in St. Patrick's Cemetery, federal law prohibits municipalities from blocking attempts to fill such gaps in coverage.
According to Grossman, by erecting an 80-foot monopole in the cemetery, which will be disguised as a flag pole, T-Mobile can effectively plug that dead zone. The petitioners further claim that no other location can suitably fill that coverage gap.
In 2003, when T-Mobile and Spring submitted a request to erect a wireless facility along Franklin Street, Solomon launched an effective defense against the proposal by riddling holes in the significant gap argument.
Specifically, Stoneham acquired a radio frequency engineer, as well as a drive-test expert, in order to measure the wireless providers' signal strength in the area.
The two experts later concluded that few calls were dropped in the alleged gap zone, and that several nearby sites could sufficiently serve the telecommunications' companies needs without violating Stoneham's zoning bylaws.
Solomon has proposed that a similar process be undertaken during the present ZBA proceedings. However, Grossman left the town attorney incredulous when he maintained that the experts could only rely on data generated by T-Mobile.
The petitioner's attorney later refused to commit to turning over some of that company data, claiming that some of the information might be proprietary and thus off-limits.
"Not withstanding what was agreed to during a previous process, we think this is beyond what's permitted [during the town review]," said Grossman, referring to Solomon's intent to hire a drive-test expert. ""It's a review [of our data that's allowed], not the generation of the board's own evidence."
Solomon and ZBA Chairman Jim Juliano later rebelled against those contentions, claiming that the petitioner was essentially asking the town to accept T-Mobile's arguments as pure fact.
"It's my feeling that you expect us to take T-Mobile's [arguments] on blind-faith and not have the town represent itself," said Juliano, who along with the rest of the ZBA, voted to demand that data.
"I can certainly understand [from your perspective] a process where you can't review the data and you can't generate your own data. I just can't understand how that's a fair process," Solomon later said.
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